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Still nothing certain on Obamacare

By JERRY SHENK

Updated:
01/11/2013 09:56:57 AM EST

The U.S. government once confiscated and planned to run a legal Nevada brothel to recover delinquent taxes. It was forced to auction the business.

Now, the same outfit that didn't make a profit selling sex and booze, that loses billions annually running AMTRAK and the Postal Service and that created a 70,000-page tax code its employees can't explain to confused taxpayers will manage health care for 315 million Americans on borrowed and/or newly printed, unsecured dollars. A massive number of unelected bureaucrats, not yet hired, organized or trained, will begin making millions of individual daily health-care decisions once made by patients, families and physicians.

What could possibly go wrong?

Through bribery and abuse of the legislative process and despite overwhelmingly negative public opinion, Obamacare was passed into law on a party-line vote. In a baffling act of legal legerdemain, the Supreme Court barely upheld it, and, in November, President Barack Obama was narrowly re-elected. Game. Set. Match. Obamacare is here to stay.

Or is it?

The act of forcing through a complex, fundamental reform of America's entire healthcare system - nearly a fifth of the American economy - in a 2,700-page bill unread by members of Congress raised more questions than it answered and presented more issues than it addressed.

The media party line on Obamacare is that it has survived all legal challenges, and full implementation is inevitable.

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That's simply not true.

In December, there were five federal court decisions on challenges to Obamacare. Only one, the longest shot, was denied. Because it alone fits their narrative, the media has reported the unsuccessful suit brought by retailer Hobby Lobby but mostly ignored the others. The D.C. Circuit Court of Appeals overruled a lower court dismissal of Wheaton College's lawsuit against the Health and Human Services mandate in Obamacare. Federal courts also ruled against the government in suits brought by the Catholic Archdiocese of New York, American Pulverizer Inc. and Korte & Luitjohan Contractors.

All are on track to reach the Supreme Court. In fact, as the extensive government intrusion into health care and new regulations, already exceeding 13,000 pages, become more apparent to state and local governments, businesses and private citizens, many more suits will be brought citing potentially hundreds of illegalities.

The Hoover Institution reports: "A federal court in Oklahoma is weighing a suit filed by the Oklahoma Attorney General arguing that the IRS would overstep its legal authority to tax Oklahoma businesses to subsidize healthcare which, if upheld, would undercut the entire funding mechanism for Obamacare. The Attorney General of Maine has filed a suit in federal court seeking to drop health care benefits for 33,000 people or require the federal government to begin paying Maine's share of coverage. All of this is likely to keep the courts and Washington busy for some time."

Unlike the notorious Supreme Court decision last summer, most court challenges cannot be decided on the taxation power of the federal government. If any portion of Obamacare is declared unconstitutional, the entire bill falls, because its authors failed to include a severability clause in the bill. Severability, normally contained in bills, provides for the continuance of the remainder of a bill if portions of it are declared unconstitutional. Depending upon future court decisions, this oversight could mean the end of Obamacare.

The problems with Obamacare aren't limited to the courts. It has implications for the economy, too. Employers are responding by laying people off and making full-time employees part-time to avoid Obamacare taxes and penalties. Others will not expand beyond 50 employees to avoid the bill's mandates. Some businesses are adding surcharges to customer bills in order to pay for new health-care costs. Despite claims that Obamacare would reduce health-insurance costs, insurers are increasing premiums, some by double digits.

The U.S. House has voted more than 30 times to repeal Obamacare. Even without Senate approval or the president's signature, the House can limit or eliminate funding for provisions of the bill and make implementation difficult or impossible.

Arguably the greatest threat to Obamacare's future is its size. The monstrosity could collapse of its own weight. Constitutionally, health and welfare is a state matter, so Obamacare's implementation depends heavily upon state governments. The bill directs states to set up health-care exchanges. Only 18 have begun the process. The exchanges create unfunded mandates for states, so most of the remainder, including Pennsylvania and several having Democratic governors, will allow the federal government to create exchanges - if it can. Considering the examples of AMTRAK and the Postal Service, it cannot - at least not successfully and certainly not on time. The task is simply too large.

More Hoover: "There is a lot more legal and financial maneuvering to be done before we know what healthcare reform will finally look like. ... When a President seeks to add a sweeping new federal entitlement, that's the way it should be."

Hubris - and a desire for power and control - motivated liberal politicians to pass a bill they have coveted for decades, but nothing is settled. Nemesis looms.

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